The Adult Survivors Act (“ASA”) took effect in New York State on November 24, 2022. The ASA amends the statute of limitations in New York for civil actions arising from sexual offenses committed against persons over the age of 18. Survivors of sexual assault have a one-year window – until November 24, 2023 – to file civil lawsuits for their claims regardless of how long ago the abuse occurred and irrespective of whether the original statute of limitations has already expired. In addition to the alleged abusers, potential defendants in ASA civil lawsuits can include employers and institutions based on negligent or intentional acts in allowing and/or facilitating the alleged abuse to occur. The ASA covers a broad array of sexual offenses, ranging from groping and forcible touching to rape and sodomy.
The ASA is modeled on the Child Victims Act (“CVA”), which became effective in August 2019, and which amended the statute of limitations in New York for civil actions arising from sexual offenses committed against persons under the age of 18. The one-year window for CVA civil lawsuits (extended due to the Covid pandemic) expired in August 2021. Aside from alleged abusers, frequently sued employers and institutions in CVA lawsuits included schools, religious institutions, and scouting organizations. Those same employers and institutions will also likely face additional civil lawsuits under the ASA. However, the pool of potential defendants likely to face civil lawsuits under the ASA has broadly expanded to include virtually all business entities, municipalities and government agencies, not-for-profit organizations, hospitals and health care providers, and professional services firms, to name a few. Survivors of sexual abuse will be able to sue employers and institutions in cases where the alleged sexual abuse occurred in or was associated with the employment relationship.
So what can employers and institutions do in anticipation of possible ASA civil lawsuits and/or upon being named as defendants in ASA civil lawsuits? This article will present strategies for employers and institutions to consider when faced with ASA civil lawsuits, especially since some of the claims could involve alleged sexual abuse that occurred decades ago.
If you are aware of claims and/or allegations of sexual abuse in the workplace which may not have been pursued at the time that the sexual abuse occurred, you should search, gather, review, and preserve available paper and electronic files, correspondence, and documents related to any such historical claims.
To the extent any such material is still available, you should search, gather, review, and preserve paper and electronic files, correspondence, and documents relating to any historical office policies and procedures for the reporting of any claim of sexual abuse occurring in the workplace or otherwise associated with the employment relationship.
If you are sued in a ASA civil lawsuit:
- determine the existence of any liability insurance policy (including excess policies) which could have been in effect at the time of the alleged abuse which affords coverage for your business or organization;
- if any such liability insurance policies are located, provide timely written notice of claim (including a copy of the lawsuit) to the liability insurance carrier with a request for a defense and indemnity;
- conduct a diligent search for all paper and/or electronic files, correspondence and documents which are available concerning the plaintiff victim and the alleged abuser(s); and
- if a liability insurance policy cannot be located, determine the existence of alternative proof of liability insurance coverage – that can include a variety of options ranging from written correspondence with an insurance broker or agent to reviewing prior litigation and historical records.
Depending on whether the plaintiff/victim commenced the lawsuit anonymously or by pseudonym, you should be able to identify potential or actual witnesses who may have information concerning the alleged abuse, the plaintiff/victim, the alleged abuser, or anything pertaining to the policies/procedures in effect at the time of the alleged abuse. If any potential or actual witnesses are still employed, you should interview them for relevant information about the allegations of abuse. If any potential or actual witnesses are no longer employed, determine their last known addresses to provide to counsel to be interviewed during the investigatory stage of the lawsuit.
If you are unable to locate information establishing liability insurance coverage for the time of the alleged abuse, you may have to consider establishing financial reserves to protect against any possible settlement or judgment which may be obtained against your business or organization by the survivor plaintiff.
Even though the survivor plaintiff bears the burden of proving their claims in any ASA civil lawsuit, there are actions an employer can take to maximize the effectiveness of their defense while trying to minimize the financial exposure of an influx of ASA civil lawsuits.
If you have any questions or need any assistance in the defense of a ASA civil lawsuit and/or in determining the existence of liability insurance coverage to defend and indemnify you against a ASA civil lawsuit, please contact Scott Fisher in our Litigation Practice Group at (516) 393-8248 or at firstname.lastname@example.org